SCOTUS: Breyer Retired

 

With a full heart, I accept the solemn responsibility of supporting and defending the Constitution of the United States and administering justice without fear or favor, so help me God. I am truly grateful to be part of the promise of our great Nation … In the wake of his exemplary service, with the support of my family and friends, and ever mindful of the duty to promote the Rule of Law, I am well-positioned to serve the American people.

There was a livestream link (couldn't find it at first at noon, but found it on Twitter while it aired on MSNBC) on the website of the swearing in of Justice Ketanji Brown Jackson at noon. As bad stuff happening, "frightening" stuff in the words of Kagan's dissent today, the first black woman justice is on the Court. That is a good day.  Have a nice retirement, Stephen.

[Links the video and other material now clearly accessible on the website.]

The work of the Court is done (there will be some summer orders and then a "long conference" in September to address outstanding stuff), rushed along with a 10:45 AM final order list.  The big news is a dangerous "independent state legislature" case granted.  Sotomayor (sometimes with company) dissented in various criminal justice/qualified immunity cases too.  The High Federalists again dissented in the vaccine exemption case. 

[ETA: SCOTUSBlog finally -- after not doing so for years even after I pointed it out -- began to put summer order days on their calendar.  As of now on 7/5, SCOTUS has yet to do so.  It does have scheduled orders for October!]

For whatever reason, they allotted circuits to the justices (judges) today, which means nothing for KBJ.  There is a rule in place when a  new assignment is not done yet when there is a vacancy.  But, instead, well, I guess they will take one of the circuits from a justice with multiple ones at some point.  

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The final opinion was a limited win for the Biden Administration regarding the change in the "Remain in Mexico" policy.  Roberts for the Court, Kavanaugh going along, and the other conservatives dissenting (Barrett on procedure, the rest on the merits).  

So, the  big news is really the EPA case, which makes clear that there is some sort of "major questions doctrine" where when the courts determine some agency action is "major," they will look more closely and second guess.  Here, they really should not have looked at all since the policy was not active yet.  

[ETA: Some frames here will basically say that the Supreme Court makes it impossible to regulate at all in this area.  The actual result is somewhat specifically narrow but is basically an open threat, one that in various cases will be applied by extended in time -- see the SB8 litigation that ran out the clock -- lower court rulings. The firm recognition, more hazy in past cases, of a "major questions = doubt principle" will give the courts a lot more power, and that is the bottom line here.]

But, activist/YOLO Court and all.  Kagan with a  "it's a Calvinball Court" dissent for the liberals, ending with how "frightening" it is that the Court is making environmental policy.  We shouldn't have a frightening Supreme Court.  Major change is necessary though there are no easy answers on how.  Some want Kagan and Sotomayor to retire. At this point, I understand the sentiment.  Not that it will happen.

Good luck, Justice Ketanji Brown Jackson. 

Books: Shara Wheeler and Selma Blair

I have more "fails" with books these days with so much reading online and other issues. Still, some books have some good things going for them, even if I cannot get into them or read the whole thing. Skimming or read part of them can be worthwhile.

I first saw I Kissed Shara Wheeler (at first, Shara Wheeler kissed her!) as a NYT book review. (BTW, the Republican lieutenant governor candidate is openly a lesbian.) I did not want to read over 300 pages of this "your classmates are a bit more complex than you think" gay friendly novel. But, it has various charms. Many should like it.

Mean Baby is a Selma Blair [her actual first two names] autobiography. Selma Blair's over 300 page book is also one I did not want to read straight thru. But, again, there is some good stuff in there about a complicated, and sometimes hard life (up to and including her current MS). Again, many very well should check this book out.

SCOTUS Watch: Breyer's Penultimate Day

The Honorable Ketanji Brown Jackson will be sworn in as the 104th Associate Justice of the Supreme Court on Thursday, June 30, at noon at the Supreme Court of the United States. Chief Justice John G. Roberts, Jr., will administer the Constitutional Oath and Associate Justice Stephen G. Breyer will administer the Judicial Oath in a ceremony in the West Conference Room before a small gathering of Judge Jackson's family.

Yup. A bit earlier than expected (Breyer in his retirement letter said he intended to retire when summer recess began, and even as opinions dropped this morning, people figured the soonest that would be was Friday. And, like part of the 100th Anniversary ceremony in honor of Justice John Paul Stevens, the "ceremony will be streamed live on the homepage of the Court's website." 

The details of the oaths/affirmations are helpfully summarized in this thread. Suffice to say, the Constitution (Art. VI) provides the requirement for one [but not just to judges; only POTUS gets a specific text though] while the Judiciary Act of 1789 and so forth  guides the second (including a form of equal justice that many assume is a given).  Nice bit involving the Breyer and Roberts.  

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And, Breyer's last (we can say "probably," but come on) opinion of the Court was a fitting one.  Using "Constitution’s text, its history, and this Court’s precedents," he only needed sixteen pages (no footnotes as usual) to allow a veteran to sue state-agency employer for violating his federal rights.  Given his druthers, as seen by his concurrence in a case Kagan cites, Breyer clearly would go further to limit sovereign immunity in this field.  But, he got a majority, including Roberts and Kavanaugh.  

(As noted by the article, former clerks of Kennedy disagreed on the reach of a key precedent in this area.)  

The majority opinion basically notes there are certain federal powers under the Constitution that are singularly federal, including the war power, and state sovereign immunity rules do not apply there.  I think that applies to the Commerce Clause, but he's right that there are more provisions (including the "this would have interesting implications as further matters of discussion" cites to the militia and Guarantee Clause) regarding war power.  

The dissent shows that Barrett (and not for the first time) is a more consistent state rights person than Kavanaugh and Roberts.  Kagan's concurrence is interesting.  One thing I caught on second reading was that she didn't just cite an opinion of the Court, but noted "she" wrote it.  From my reading, the usual practice is not to personalize things that way.

Kagan probably is at heart not a big fan of the sovereign immunity precedents that find some implicit "plan of the convention" or whatever limit on congressional power to pass legislation (Congress made up of representatives of states) to allow lawsuits against states to help enforce Article I, sec. 8 powers.  But, she wrote an opinion doing do since precedent seemed to compel it.  

Kagan notes in her concurrence today that a case the next term "proved her wrong" using a "new test."  THERE, Kagan actually dissented (joining Barrett's dissent).  She joined without comment, noting today she did it since precedent (which is sorta her thing) compelled it.  Kagan today, the fifth vote, applies that precedent (while noting the whole edifice is far from clear) to join the majority.  So, she's sorta consistent, huh?  

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While the majority described a gradual assumption of state authority in Indian country aided by historical trends and ratified by a series of Supreme Court precedents, the dissent focused on Congress, which never explicitly authorized state jurisdiction over these types of defendants. Both majority and dissent accused the other of overstepping the role of the judiciary, but the dissent’s focus gave primacy to the role of Congress over the majority’s reliance on historical changes acknowledged and ratified by the judiciary.

A basic theme in recent conservative issue opinions (note here we see  Maine might have a way to limit one such opinion as to funding of religious schools that violate equality rules*) is the importance of "history and tradition."  But, what exactly does that even mean, especially when focusing on groups that have been target to discrimination?

There has been some crystal ball-ing regarding today's major Native American ruling arising from another 5-4 case that now goes another way with a new member on the Court.  One flag was Gorsuch's assignment in the coach prayer case, which (following the rules of even division of cases) suggested he would not get this one.  And, if Gorsuch didn't get a majority in an Native American case, well it isn't a good sign for Native Americans.

(This is a general rule.  The double jeopardy case very well might be a good one for tribes, especially since the result was supported by the tribe in question.  These questions are not always crystal clear as if there is ONE answer to these questions.)  

The result here went against the tribes and Gorsuch was pissed off in dissent.  I decided to admit my limited knowledge here and listen to others, especially experts on Native American law, including Native American law professors.  One wrote the SCOTUSBlog opinion review.  Note the "what history," "what tradition" aspect of the case.   

Some think Gorsuch here is on the money.  I'm not sure exactly.  I do think the appropriate thing to do is for Congress to clarify things.  And, this is not a crystal clear partisan here at all.  There is every possibility Republicans from states with sizable Native American populations will be willing to work with Democrats to settle this question.  

And, it is far from clear there is some "one size, fits all" solution. There are millions of Native Americans in this country, parts of a slew of tribes. A few tribes are quite large.  Many are tiny.  If some tribe has a few hundred people, the rules very well might be somewhat different than those with one hundred thousand.  

This is exactly the sort of case where some ability of the Supreme Court to formally send a case to Congress for review and a fix would be ideal.  

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Golan v. Saada was the recent case concerning the rules involving international child custody disputes.  An order today accepted a request to issue the judgment immediately, avoiding more delays.  

In other inside baseball news, Breyer's announcement suggests the expected "clean-up order list" will be somehow accelerated.  The idea here is that Breyer will be officially retired from "active service" at noon tomorrow, which means they will be all done by then.  I and others more knowledgeable about legal stuff assumed a Friday clean-up -- the usual practice being one such order to clean up everything a day after (at least) the final opinion day.  

Since even "Re-List" Guy isn't really sure what exactly is going on, I guess the best thing to do there is just wait and see what happens the next day or two.  It has been a busy June. 

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*  Surely, this might result in more litigation over religious liberty claims. Still, as I noted when this case went down, the state has other quivers in its bow to try to limit the reach to protect its own anti-discrimination law concerns.  This issue is not fully overlapping with the separation of  church and state concerns.

NY Primary Day (and Other Election News)

Today is a primary day for various states, including for the New York governor races. Looks like a more credible candidate is defeating Giulani's son on the Republican side, and the incumbents (Governor/Lt. Governor) won on the Democrats' side. I thought maybe there was a shot the Lt. Gov. was not a gimmee, since he just got there. I was rooting for the more liberal Working Family Party candidate. Oh well.

The state senate and House seats race is up next while there also was some assembly and judicial races (it seems) some places. Not for me. It was not a major election or anything, but it seems at least halfway reasonable numbers showed up at my polling place.  I worked a desk and say the Bronx Borough President (rocking a pink outfit) vote nearby.  

The whole thing is a bit of normalcy among so many craziness.  I do think, like one philosopher argued in a book, we have a duty to vote as citizens. It's appreciated around 200 hundred people did (in various cases bringing kids along) in my district, even if for one race, one where the winner was not really a nail-biter.  That is, after all, the standard New York election, though there are some close races and upsets.  

The surprising hearing shows the extreme alternative of sorts. One person responded online that it is somewhat hard to build up excitement to vote for two generally bland choices.  Surely.  Doing the right thing can be pretty tedious or unsatisfying or simply boring.  Such is life.  Like Mother's Day reminds us to celebrate something that should be celebrated all the time, it is good to remember that it still is so important.    [added paragraph]

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Meanwhile, a late scheduled 1/6 Commission hearing had a lot of shit, reminding that Trump should have been removed by impeachment.  Republicans (helped by the federal judge that testified giving them a b.s. excuse).  It really seems to be pushing things into "if you don't prosecute this guy, the fix is in" territory.  The committee has carefuly handled things so far; they wouldn't have had an emergency meeting for no good reason.

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A district court (carefully chosen by the Republican challengers, Staten Island a Republican stronghold) struck down the new New York City law allowing non-citizens to vote for local elections.  The ruling seems to suggest a constitutional rule the protects citizens voting means only citizens can vote.  Various lawyers studied the matter for the City Council and mayor, and I think they probably are right in disagreeing.  

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Someone was "invited to brief and argue this case, as amicus curiae, in support of the judgment below" by SCOTUS.  More notable, a 6-3 shadow docket ruling (no explanation by either side) holds up a extensively explained racial redistricting case, blocking  win applying to this election cycle.  

Remember how we got this Court?  For the nth time, fuck you "both sides do it" people.  Ditto really the idea that we should not do anything very major (such as expanded the Court or some other attention making thing)  is bad strategy.  The very unpopular Court is stripping abortion rights, making it harder to regulation guns, and a whole lot more.

The Court is not legitimate and are screwing us over. How fucking dare it for overruling Roe since they could What more will they do later this week? Well, we shall see.

SCOTUS Watch: Day 1 (Coach Prayer)

Order List: Nothing really of note. Various opinions are applied to other cases. Some motion to file something redacted is accepted in a case entitled Dicks v. Dicks. A case no one really cares about is granted.  The final "clean-up" order should have more interesting stuff, including some statements on various matters.

And, Thomas uses a case about labeling an anti-gay group a "hate" group as a reminder he wants to re-litigate the "absolute malice" standard for the press. A matter of opinion a strange case to use when there must be some case based on actual objective facts. [Also, even though the state agreed with the correction, for some reason SCOTUS rejected a request to fix an opinion, and no one dissented.  Just a little bit of wtf?]

Coach Prayer:  This is the ideological case with facts made (or framed) for Fox News that four justices waited around for a fifth to make sure they would win.  Roberts apparently wasn't gung ho, though he went along now without comment. Thomas and Alito had brief concurrences.  Gorsuch for the majority (so no comments from sports guy Kavanaugh) and Sotomayor (citing the guns and abortion cases) for the liberals in dissent.  

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys

Scalia got his wish: Lemon v. Kurtzman (secular purpose, no effects for or against religion, and no religious entanglements) is declared overruled. Actually, allegedly, it was overruled while we weren't looking!  Look for a similar conclusion eventually with the administrative law discretion rule of Chevron, a case that has been notable in its absence.  

Sotomayor (without Breyer or Kagan speaking separately in a religious liberty case -- as she notes at the end, not upholding separation of church and state or enforcing coercion rules is not "religious liberty") deals with the majority.  She brings the receipts (photographs) to call bullshit about the lack of coercion or the idea it was purely private speech.  

The Court again appeals to history and tradition, which as noted in this thread is applied without context in basically a fraudulent way.  The dissent basically covers this.  As in the abortion and guns case, history can be useful, but only so much, and only if you tell the whole story.  That is a value of the "reasonable observer" test in endorsement cases.  

So, what is next?  Well, we have a win for "religious liberty" by lying about the facts (perhaps, they could have looked at once of the governmental endorsed Ten Commandments monuments to learn about bearing false witness).  The Establishment Clause was watered down, in schools (where it used to have a bit more bite), while the coercion (making it a bit redundant given the "Free" Exercise Clause) is defined strictly.  And, tossing Lemon makes secular purpose apparently not too important.   

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The Roberts Courts provide various ways for you to come satisfied, even now that it is the Barrett Court.  It's somewhat harder these days. In the First Step sentencing case, Thomas and Gorsuch joined the liberals (Sotomayor opinion).  And, Roberts, Gorsuch and Kavanaugh joined the liberals (Breyer) in another criminal justice opinion, though the others concurred in judgment.  

I will not try to parse these except to note criminal law writers have cited the first as an important ruling for defendants.  Note it was 5-4 and there apparently (says one theory) a chance that Sotomayor had to talk Thomas into joining her over Kavanaugh.  Alito thinks the majority in the other opinion does something major, but you know, Roberts and Kavanaugh went along.  I have my doubts it was that major. 

(Note this portion late in Sotomayor's opinion: "The First Step Act does not require a district court to be persuaded by the nonfrivolous arguments raised by the parties before it, but it does require the court to consider them."  So, it is telling that this is what excites people these days.)

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See ya on Wednesday with four left. 

Dobbs: The Joint Dissent

Sharia 👏🏻law 👏🏻allows👏🏻 for 👏🏻abortions https://t.co/GhfJOw8B2P

— Dr. Kari Nixon (@HalfSickShadows) June 25, 2022

I will not provide a comprehensive discussion of the dissent. Here is one summary by a high school student (Class of 24) at High School SCOTUS. Other summaries can be found by Amy Howe and Dahlia Lithwick. These all provide various aspects covered, including talking about the majority opinion.  

[Also, Linda Coffee, the lesser known co-counsel in Roe v. Wade, is still around.  Just to check in.]

The dissent does not try to comprehensively argue for the constitutional right to abortion.  It does not discuss (flagged by Sotomayor) possible religious liberty arguments.  It references that the choice is a moral one that people have conflicting views over.  But, it does not address that argument. It does not discuss the (expressed more often in commentary these days) Thirteenth Amendment argument.  

It does not provide an extended look at how the liberty at issue arises from a range of constitutional provisions.  It does summarize the basic constitutional interests involved and precedents that protected them. This is a basic core of what is at stake:

The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven—all part of the fabric of our constitutional law, and because that is so, of our lives. Especially women’s lives, where they safeguard a right to self-determination.

Without the ability to decide whether and when to have children, women could not—in the way men took for granted—determine how they would live their lives, and how they would contribute to the society around them.

This answers two basic arguments of the majority and concurrences. (1) Abortion is somehow unique (2) Only substantive due process is involved. It is not unique.  The right to choose an abortion is part of a united whole. And, it is one that is necessary for women's equality.  

The majority covers both.  This includes how the denial of a right to choose "situates a woman in relationship to others and to the government. It helps define a sphere of freedom, in which a person has the capacity to make choices free of government control."  The denial of this right, the idea that Constitution is "neutral" on this, is a horrible announcement. 

The dissent also reaffirms what is often known as "living constitutionalism" (some don't like that name), not primarily concerned about what the state of affairs was in 1868 or even 1972.  A lot has happened even in the last fifty years here.  The "common law constitution" approach looks at all the facts, including the law and experiences of each specific era. 

Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights.  

Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

I find the citation of "the Framers" overdone, but understand that by now that is how the Court and the people want to see things. One might call this part of stare decisis.  What the Framers did was ratify specific text, which we today have to apply, using our own judgment be an eye to the complete history behind us.  

And, I think many Framers was well aware that this was how it would happen. How else is open-ended language likely to be applied?  I think the dissent overdid the women's rights bit a tad.  The Constitution did provide certain equal rights to women. Women slaves were freed.  They had due process rights when prosecuted for a crime. And so on.  

But, clearly, in large part because they played only a limited role in the political process [not NONE -- women did speak out, petition, and so on], in 1868 they were not treated as full citizens.  The facts on the ground in 1868 has to be taken into consideration when history is referenced here. As I noted in the Kavanaugh entry, the history of abortion regulations here is complicated.  Breyer noted in his gun dissent that justices aren't historians. But, selective use of evidence is also what judges tend to do in general.

They also typically make access to early abortion easier, for example, by helping cover its cost.

The dissent has some bite, both snark (such as reference of the possibility of a right to time travel) and anger ("The effects will be felt most severely, as they always have been, on the bodies of the poor. ... It is a history of women dying.")  It also strongly replies to the majority on precedent, including how other countries also secure a right to abortion.  And, if some countries do so only in the first trimester, there are significant differences, including open-ended exceptions and a much stronger social welfare state. 

It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law. 

The YOLO Court.  At some point, it must get oh so tiring.  

And after the fetus’s viability—the point when the fetus “has the capability of meaningful life outside the mother’s womb”—the State could ban abortions, except when necessary to preserve the woman’s life or health.

The dissent takes Planned Parenthood v. Casey for granted, and realizes Chief Justice Roberts is but one vote.  His concurrence is (as I noted) dealt with in basically a dismissive way in one sentence.  They don't agree with him, but clearly the majority is much worse.  Since the majority set the line at fertilization, and there is so much more to talk about, a debate over line drawing is not covered.  

That is, the dissent does not substantively (other than as an appeal to precedent that reasonably decided the issue without any good ground to overturn) try to defend the viability line.  The quoted passage does suggest that there is a basic difference between so-called "potential life" inside the womb and persons protected outside it. One with a basis in the Constitution.  

The dissent denied that it did not recognize any state interest in potential life. By accepting the current balance, the dissent was accepting that the growing life inside the womb legitimately can be recognized in ways not in place otherwise.  Again, the dissent did not in depth discuss such things, and I would not be surprised if Sotomayor might have differed some from the others (at least) on what exactly was involved here.

The extreme take of the majority eased the task here. Again, it might have been reasonable to have re-argument to carefully examine such questions.  Plus, overall, they are obviously touchy. To make a reference to the opening tweet, there is an overhang of religion there.  Anyway, are you ready for more SCOTUS?

ETA: The dissent now moves to the country, including in theory Congress:

It can impeach and remove justices. It can increase or decrease the size of the court itself (at its inception, the Supreme Court had only six members). It can strip the court of its jurisdiction over certain issues or it can weaken its power of judicial review by requiring a supermajority of justices to sign off on any decision that overturns a law. Congress can also rebuke the court with legislation that simply cancels the decision in question.

When the Republicans gained control in 1801, it responded strongly to the Judiciary Act of 1801, including causing a delay of the judgment of Marbury v. Madison.  Republicans in the 1860s controlled the size of the Supreme Court and jurisdiction. So, these things can be done.

But, good luck with the current 50-50 Senate, even if you can convince the thin majority of the House (now with a new Republican, replacing a conservative Democrat who resigned this year). Long term, however, something needs to be done. Short term, the move is trying to win as many seats as you can.  And, I would say, confirm as many judges.

As to the majority opinion, I leave the dissent to answer it.  The only thing I would add is that it simply is unclear what sort of regulation would violate rational basis. Its brief discussion at the end surely does not clarify much.  Kavanaugh cited Rehnquist's comment that a life of the woman exception would be required.  

But, as I noted, how strong would even that be?  The three district court in Roe itself said the law there was vague.

Dobbs: Kavanaugh Concurrence

One minor debate going on is who exactly assigned the opinion. Roberts concurred in result, but not in the overruling Roe/Casey. Some, but not the joint dissent, handwaves the difference. The majority is not just a minor change from Roberts' position. It is shades of Justice Brennan not assigning a death penalty case because he strongly disagreed with the plurality only finding the specific law a problem. 

And, why in the heck would he assign it to Alito of all people?  If you are going to overturn Roe without being a total ass about it, which when dealing with something like this is sensible, Kavanaugh or Barrett makes some sense.  Barrett knows how to sound reasonable and professional.  Kavanaugh seems more forced about it in my view.  Gorsuch always lays it on a bit too thick and his originalism sentiments makes him too Thomas-y.

Barrett (unlike in the gun case, where she tossed in a brief professor type concurrence) decided to sit this one out. Kavanaugh, who Collins is full of shit to be so "shocked" about, did write a concurrence. He was in "I'm so reasonable, let me explain" mode.  I will let you off the hook and not post a picture of him.  But, if it wasn't clear, I find this whole thing fucking bullshit.  A basic part of the this whole thing is HOW DARE THEY.  But, 2016 (and January 2021) has a lot of ugly consequences. 

Anyway, Thomas' concurrence is short (under seven pages). Kavanaugh takes twelve pages.  Since he along with Roberts (see the gun case) are likely "swing voters" here, the concurrence is fairly important.  There is also a matter of how reliable the whole thing is.  The comment about travel is strongly written, leading Kate Shaw (Strict Scrutiny Podcast / Chris Hayes' wife) to think it likely to stick. Her co-hosts were doubtful.

If Roberts, like he did in the gun case, went along with the majority, he very well might have signed on to this Kavanaugh concurrence as well.   Now that the opinion is here, it is somewhat academic to imagine if there is any anti-abortion law that Roberts would not agree with but Kavanaugh would.  Perhaps, something of the sort of SB8, that screws up normal judicial rules.

I write separately to explain my additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.

This is again typical O'Connor/Kennedy sort of thing to try to frame a majority opinion and explain why a "centrist" type is going along. Such people are just ideologues, mind you, they are just looking at this in a reasonable sort of way.  It is clearly his view of himself at this point. 

And, putting aside the "it's the law, we just have to see how it falls" (which Kavanaugh joined) Alito remarks, finessing societal reaction like this is part of the game, so to speak.  That is a basic assumption regarding the respect for how Chief Justice John Marshall handled things in Marbury v. Madison. That is, a judicial, in a form of that word, approach that carefully addressed public and institutional realities. 

The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion.

Usual stuff -- abortion is a matter of deep dispute and there is no reason for the courts to step in. The Constitution is "neutral" on the question.  This is false. I have spent decades now talking about this and in "Joe's Constitution," I spend a chapter running down the multiple constitutional provisions involved here.  A basic point here is that enslaving people is something the Constitution does not allow.  

(The Constitution is "neutral" -- to be clear -- on the result, just as it is "neutral" regarding if someone needs to believe a certain idea or religious belief.  The very right, the very equal liberty, to make these decisions and all that entails, is something the Constitution is not neutral on.)

The concurrence is striking in that it tosses in some conservative shibboleths (to use Mark Tushnet's term).  Some might not expect this sort of thing from this guy:

The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views

This is the usual strawman (straw-bro?) bullshit.  There is no need to "rewrite" things here.  "New" rights are not being created out of whole cloth.  The right to choose allows individuals themselves to choose their own moral views, with clear religious liberty aspects, here.  The "policy views" are based on constitutional principles.  There is a strong debate on what they are.  But, it is not just justices relying on their "own" views.

As I see it, the dispositive point in analyzing American history and tradition for purposes of the Fourteenth Amendment inquiry is that abortion was largely prohibited in most American States as of 1868 when the Fourteenth Amendment was ratified, and that abortion remained largely prohibited in most American States until Roe was decided in 1973.

One thing covered in the discussions of this case is the complexity of how "largely prohibited" abortion was in 1868.  The same can be said for its prohibition afterwards.  The discussion in Lawrence v. Texas comes to mind.  For instance, there was a general opposition to targeting women themselves in enforcing anti-abortion laws.  A telling point that is just one reason why abortions occurred in large numbers during this time period.

Abortion was legal in various ways during this time period. Also, one reason why we have constitutional rights is to serve as checks against legislative violations.  The Thirteenth and Fourteenth Amendments were ratified to override many current policies and the decades afterwards were filled with state laws that were later found to violate its terms.  

Finally, why the laws were in place is a rather important matter. Medicine significantly developed.  Times changed, and a growing understanding that women should have control of their own health care arose.  Such things reflects other cases where courts determine that merely because something was illegal did not mean constitutional rights were not present.  

The Court in Roe erroneously assigned itself the authority to decide a critically important moral and policy issue that the Constitution does not grant this Court the authority to decide.

How? It can't just be that some disputed moral issue was involved. The courts (see Tocqueville) decide a range of greatly disputed moral issues.  How did it "distort" its role?  How is Roe different, for instance, from Griswold?  Other than pointing out that Casey did not end the big debate, I see no ... NONE ... discussion about this.  It's just his ipse dixit. 

Be sure, tossing in his usual weasel, he has "deep and unyielding respect" for the Casey plurality.  I'm sure you are quite supportive of your predecessor.  Not sure how far Souter or O'Connor (if she was competent) would want to toss you though.  

I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents. 

Like the majority (and Thomas to the degree he claims abortion is unique), Kavanaugh assures us that contraceptives, same sex marriage, interracial marriage, and so on won't be threatened. On some level, that is somewhat reassuring, and I don't think Roberts or Kavanaugh really want to go as far as some make out is liking. Can we stop with the "Loving is next" stuff?

But, Roe reflects the basic principles of these precedents.  It is hard to believe Dobbs (especially given some of its language that is far from so easily cabined) will be so limited.  A basic thing that is clearly next is just what "abortion" entails, including IUDs, abortion pills, and so forth. And, what about in vitro fertilization or stem cell research?

And, why exactly is same sex marriage different?  The Chief Justice strongly dissented in that decision.  It was 5-4.  It was a greatly disputed moral matter. There was a long history of non-recognition of same sex marriage.   The dissent's "well, we want to believe you but" replies as much as those from those specifically affected (GLBTQ) have bite.

For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel. 

There will be -- as noted last time -- a slew of legal questions to determine in state and federal courts.  Not even "will no longer decide the fundamental question of whether abortion must be allowed" is likely to be true unless "fundamental" does a lot of work. As the dissent notes, what about if it is necessary to protect health?  Mind you, every pregnancy is a risk to health.  Would a ban be even "rational" then?

I surely think you cannot block a person from traveling to another state to have an abortion (or any number of things).  Move beyond the burden in place from having to travel.  But, it is far from clear how the courts will finally determine various issues here. For instance, can a state penalize a doctor licensed in said state for providing abortion services elsewhere?  

(The linked article -- also cited by the dissent -- provides various complexities about how a state might penalize out of state action.  And, what exactly -- as it notes -- will "interstate" quite mean?  What if you call a clinic for an appointment or help someone go there? Is this "in" a state and something the state can criminalize as aiding and abetting an abortion?)

And, he tosses in an unlikely concern about states penalizing people for abortions before Dobbs. That would clearly violate the Ex Post Facto Clause.  But, any "liability"  (see SB 8) is less clear.  That clause from the 1790s only applied to criminal behavior.  It would be a question of procedural due process to determine.  Anyway, even that, seems not really a major concern. 

greatly respect all of the Justices, past and present

Sure you do.  You just assume they are blatantly violating their judicial duties, including the "constitutional principle of judicial neutrality."  

The concurrence ends thusly:

The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process.

The "issue of abortion" will remain subject to a range of legal disputes.  The state of California regulated crisis pregnancy centers and the Supreme Court struck down as unconstitutional a reasonable disclosure law.  Tell me again how ...

As Justice Scalia explained, Roe “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.” 

The Supreme Court allowed the states discretion on how to regulate abortion, including as applied to waiting periods, who performs them, parental involvement, medical regulations of a varied type, how exactly to frame informed consent, and more.  No, it did not allow states to enslave people by forcing them to be incubators.  See, Amendment 13.  

And, it is so very rich that the same people who support reduction of voting rights talk about tossing things back to the the people themselves.  Plus, this result came via minority rule, mixed with other skullduggery. Normal practices put in place a Supreme Court that upheld Roe.  

I'm not inclined to go all the way like those who attack the Court as a historical institution, but talking about the one in place now, the general sentiment when people like Kavanaugh talk in this fashion is STFU.  And, yes, we should not merely accept them ala Breyer being so pleased with the respond to Bush v. Gore.  The start of a solution is often a change in mindset.

Dobbs: Thomas Concurrence

I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any pen of life, liberty, or property without due process of law.”

The importance of reproductive liberty to women's equal place in society, which is a matter of equal protection (with some 19A mixed in), is a significant aspect of the dissent. It also is cited in Planned Parenthood v. Casey. And, there is a section in the respondents' brief entitled "The Right to Decide Whether to Continue a Pregnancy Before Viability Remains Critical to Women’s Equal Participation in Society."

Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”

There has been a lot of scholarship regarding this point.  Whatever he thinks some Plato-like forms version of the Constitution supposedly guarantees, it has been generally accepted from at least the mid-19th Century (probably before) that there is some substantive aspect of due process of law.  Trying to overturn over a hundred years of precedent might be his cup of tea, but it's on some basic level ridiculous.  

The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised"

The dissent explains how they are not "unique" in various respects. The Catholic Church, for one, does not think "potential life" suddenly is not an issue when birth control is involved. As Justice Stevens noted in Thornburgh it is basically questioning begging to separate things at the fertilization line.  And, no other "unique" aspect is present, including such things as it being illegal or something at the relevant time.

That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.

And, going after "substantive due process" won't stop abortion rights as seen by the opinions in Griswold (reference to the 9th Amendment and penumbras of enumerated rights), even aside from the equal protection aspect.  So, for example, Justice Thomas in the past was willing to accept that there was a fundamental right to raise children as one sees fit. The right not to have children has been defended from that overall principle. 

What exactly is wrong with "substantive due process"?  Justice Douglas in his concurrence in Doe v. Bolton denies he was using it.  He argues that the right to privacy is necessary to protect the enumerated "liberties" found in the Bill of Rights.  For him, substantive due process was problematic since it is an open-ended means of judicial policy making.  At the end of the day, how much sunlight is between Harlan and Douglas on this point is unclear.

First, “substantive due process exalts judges at the expense of the People from whom they derive their authority.”

The fact Thomas quotes an opinion by Justice Byron White, who concurred in Griswold and was willing to accept unenumerated rights in various cases, is telling.  Thomas citing this is rather amusing. He appeals to various sources to overrule current majorities.  That's okay though.  

Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others.

Again, this just moves the problem.  If someone supports a "privilege or immunities" approach or the Ninth Amendment, there will will be unenumerated rights for which a higher degree of scrutiny, using various criteria (including vagueness concerns), will be involved.  

Third, substantive due process is often wielded to “disastrous ends.”

He cited Dred Scott here as if that opinion rested on substantive due process.  Again, there is nothing unique about SDP here, and it is hard to find a right that will be applied that route that cannot be another route. So, for instance, people think the gun ruling was disastrous.  He would use the privileges of national citizenship route instead of substantive due process. 

===

I think the dissent is generally good, but does not provide a comprehensive summary of how various constitutional rights and liberties, with a slew of cases to back it up, adds up to (among other things) the right to choose an abortion.  It summaries some precedents that do so.  And, it's okay. The joint dissent had enough to do.  The material is out there.  

The majority assures us it is just cutting off abortion, but as the dissent notes, there are many more lawsuits to come. A federalism fight about abortion pills perhaps one of them.  Thomas' concurrence is a warning about the additional stuff that might be on the chopping block.  

But, the idea that the reason is that the Supreme Court will suddenly not protect substantive due process (or the basic underlining principle of unenumerated rights) is a lot more dubious. The overall principle was around in some form since the Founding.  The reference to privileges and immunities alone shows it still will be with us for some time.

Dobbs: Roberts Concurrence

ETA:  My councilwoman with a well timed hearing on crisis pregnancy centers.  If they ever pass more regulations or something, be careful, given the Supreme Court already had that horrible 5-4 ruling selectively allowing them to mislead the public by striking down basic disclosure rules.

We believe that THE CHIEF JUSTICE’s opinion is wrong too, but no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing States to prohibit abortion from the time of conception.

Such is what the dissent says in response to the twelve page concurrence in judgment of Chief Justice Roberts. The majority spends more time on it. It argues neither side in the case asked for the more limited decision he settles on. It also argues that the solution is not really principled. No halfsies, dude.

It is appropriate to give short shift to a path not taken, especially when the official law of the land as handed down by the Supreme Court involves much more.*  We are not (except vaguely) open to hearing internal debates. There might have been one to try to give Roberts' opinion at least one more vote, which failed.  A twelve page opinion that significantly changes Court precedent itself seems somewhat thin.  As if was not a full effort. 

Regardless, I think the concurrence is worth comment, especially since it probably voices the opinion of many "compromise" types.  And, even though the dissent covers a lot of ground, it does provide an approach not fully covered. Again, this does not mean much here, since the Court just went all the way.  Still, I think it warrants discussion, and probably a few pages on his viability discussion could have been tossed into the dissent.

We granted certiorari to decide one question: “Whether all previability prohibitions on elective abortions are unconstitutional.”

Yes.  In some other case, the state's decision to "go big" once they had that fifth vote might have even led to a "DIG" since the case was not granted for that purpose.  The approach here by the YOLO [as the dissent notes, a Court "not restrained but aggressive, not modest but grasping"] Five encourages abuse of the litigation process.  Breyer flagged that in the gun case -- a fact laden matter was not allowed to be carefully litigated in trial court.  

[The question is being applied to a 15 week ban with limited exemptions. So, it is still somewhat open-ended.  A "yes" answer doesn't even necessarily help the state, some set of abortions between 15 weeks as applied here and all elective (what exactly does that mean?) abortions before viability existing.  

And, what exactly is a "prohibition"?  Not being able to have the abortion at all?  A sorta safety period that might bring in a few pre-viables? Roberts test surely is more open-ended than 15wks.]

Roberts pushed back on the majority and noted that the state very well (to be clear, as a back-up plan) argued that the 15 week ban can be upheld on narrower grounds.  That is somewhat coy, of course, since the state spend most of the time going big.  The proper approach here, if anything, would have been the Citizens United reargument approach, with a question on the wider issues, at least on overturning the viability line. 

viability line "never made any sense"

Roberts points out that the original challenged laws did not draw the line at viability and neither side set forth that as the line.  But, the proper line was a matter of dispute, the final decision necessarily discussing proper purposes and what test to apply.  

The viability line was a result of that.  Roberts takes a shot at the "rigid" trimester scheme, which is old news, since Casey disposed of it.  The viability line did "make sense."  You can disagree with it, but upending fifty years of doctrine warrants an honest ("no sense" is not it) accounting of why the old rule is wrong and a new rule is better.  Stare decisis there warrants a strong accounting.  

Roberts argues basically the only thing Casey offered that it was "workable" and notes that he has an alternative.  He argues the important thing is a reasonable choice to have an abortion; "so long as a real choice is provided," it is okay.  Pregnancy tests generally (or some such qualifier) allow you to determine you are pregnant by six weeks. Most abortions occur in the first trimester.  Fifteen weeks are plenty of time.  

Sort of a weak argument. What about various cases where early discovery of pregnancy does not occur, especially for teens with less reliable cycles and judgment calls?  What of those abortions for purposes of fetal abnormalities?  What of a range of delays? When is the appropriate line? Is it fifteen weeks? Or some time earlier?  

Roberts minimizes the value of the "workability" reason in Casey for upholding the line, but that is a basic value of a line like viability.  Basically, a range of things do occur before viability to make an earlier line problematic.  If a right to choose is granted -- and for now Roberts grants it -- changing the line is problematic.  And, the state does not carefully provide exceptions to deal with this either.

Also, a basic issue here -- cited in Roe too -- is that it is the point where a fetus can survive outside the womb.  As Casey noted: "realistic possibility of maintaining and nourishing a life outside the womb."  The dissent quotes this, though it does not quote the wider discussion on why the viability line was chosen. Both the Casey plurality and Blackmun provides it.  

The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of “potential life.” Roe, 410 U. S., at 162–163. That changed with Gonzales v. Carhart, 550 U. S. 124 (2007). There, we recognized a broader array of interests, such as drawing “a bright line that clearly distinguishes abortion and infanticide,” maintaining societal ethics, and preserving the integrity of the medical profession. Id., at 157–160. The viability line has nothing to do with advancing such permissible goals.  [Also cites fetal pain.]

It is unclear how true all of this is.  The "infanticide" line -- putting aside how useful a so-called partial birth abortion ban is there -- seems to me part of a "potential life" debate.  Also, there was and remains a compelling interest against "infanticide."  What does that add to things?  We still have to determine what an "infant" means, the counteracting interests of the life and health of the woman, and so forth. 

Multiple opinions also did not deny that basic medical regulations are inappropriate.  And, Casey could be interpreted to be basically about determining if there is a substantial effect on abortion rights and "legitimate" state interests.  Something like "societal ethics" is ridiculously overbroad.  Anyway, the other decision did not overrule Casey, so it is unclear what difference that makes. 

In short, the viability rule was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate. 

The rule was crafted as a constitutional doctrinal line as is done in many cases.  Justice Blackmun covered this in Casey etc.  It was not "completely" unreasoned.  In fact, it has various things going for it. Before you overrule it, it should be subject to careful full argument.  Not something somewhat handled on the side while most of the argument was spent on the merits of Roe v. Wade overall.  

So, the concurrence leaves something to be desired. It would have removed the viability line (weakly saying why) with some hazy replacement where a mass of state interests (including general social ethics) go against some right to choose with probably six weeks as the bare minimum (maybe).  

Roberts says his is the path of reasonableness, not as extreme as either end.** But, defending the status quo is pretty reasonable for a judge.  Roberts does seem to (though joining the gun ruling, selectively) accept in fashion this philosophy from the dissent regarding changing constitutional analysis:

Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

This is a basic principle that should be continuously defended.  We need to apply the Constitution as current times inform us.  Yes, we can talk about things like fetal pain based on current knowledge.  What that tells us is far from clear and to me won't settle on Roberts ground.  But, a full, open, directly addressed, approach there would at least have been more honest.

And, I agree with the opening quote, though a few years from now, the difference might not be much between Roberts and the rest.  But, law should develop over time. As someone noted on Twitter, a Court in a hurry is dangerous.  Some wanted to get the end over with, so in that fashion are glad the majority won out.  I'm not really in that camp.

[Roberts cites John Hart Ely Jr.'s famous critique, which was not limited to the viability line.  The dissent was probably negligent to not remind the majority and Roberts that Ely later PRAISED Planned Parenthood v. Casey.]

Finally, having read the dissent more closely now, I have yet to see any allusion to the leak.   

---

* Cooper v. Aaron, involving defending Brown v. Bd. (desegregation) provided a strong view of the Court's power:

[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

There has been pushed back on just what this means.  It is unclear how "supreme in the exposition of the law" Marbury v. Madison intended to assert.  The Cooper opinion ended thusly:

The principles announced in [Brown] and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

Again, that is pretty strong, and it is unclear force it should have in every case.  Is Dobbs really "indispensable" in this sense?  

It is one thing for a state to blatantly ignore the Supreme Court (though we was with SB8 that apparently that doesn't mean much at times).  But, the meaning of the Constitution is applied in many ways.  

The rhetorical force given the events is fairly unsurprising.  As a basic principle, it is open to abuse.  

** This reminds me of this passage from the dissent:

The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.

I wonder what Souter and Kennedy (bothered by the house protests) are  thinking today.  Souter also was part of the majority in the court of appeals that was overruled in the Maine religious schools funding case.  One of these days, O'Connor will be in the news, the obituary pages. 

Betty Jo Has Her Baby

The MeTV early Saturday morning run of Petticoat Junction has reached Betty Jo having the baby as well as the end of the line for the mom. The actress was sick with cancer the previous season so "away" a lot, but came back at the end. It was sadly short-lived, and other than use of her voice reading a letter, only an obvious double (we don't see her face) has what amounts to a cameo role. 

The baby episode was overall fun.  I think Betty Jo's belly is a tad too big; they probably should have toned down the baby bump a tad. She married her on air hubby in real life around this time, but it doesn't look like the actress in real life had any children.  

Overall, the episodes with the third sister without the mom around to me lose some of the old charm, though there still are some fun ones.  Also, it just seems weird to have the mother "away," even after everyone knows the actress had died.  (The permanent fill-in will come next week, a lady doctor.)  Given the tone of the show, I can understand not dwelling on it, but they can have things happen off screen, especially for the final season.  

[They eventually took her name off the credits and changed the theme song to have Joe Carson running the hotel and the woman doctor staying there. So, it was pretty blatant in that sense. Wikipedia now notes: " In the 1950s and '60s, it was almost unheard of for a main character on a television show to die, particularly on a situation comedy."  Note the qualifier.]

===

I couldn't really get into multiple books lately, but did manage to finish a recent John Grisham (I read a couple of his old novels) short story collection, Sparring Partners.  Quick, easy reading; not that nourishing.  Sometimes, it is good just to finish a book.

The two longer  (about 120 pages each) ones were easy enough to read (broken into little sections of at most a few pages each), but the characters were not really that interesting. The first has an old character of his, but he isn't the primary concern in the story.  The shorter middle story (about a young person about to be executed) was the best.  It focused on the one character and I personally cared about him a lot more.  

===

I have noted that Friends has for the last few years been comfort food for me.  I don't know if I watched it weekly when it was first on, but recall being annoyed at the Chandler/Monica marriage proposal two-parter (it was forced), and stopped watching.  

I checked out the 9th Season DVD [the new 25th Anniversary version; not sure what more is provided though the color looks brighter] to see the Christiana Applegate episode. For whatever reason, it is skipped over in the usual Nickelodeon rotation.   The DVDs also provide extras and stuff edited out, especially when there were "supersized" episodes.

She's very good though for whatever reason neither the commentary track or her later interview (10th season DVD) mentions her earlier work with the "Joey" actor on Married ... with Children and his short lived spin-offs.  The season and series sorta dropped off permanently around mid-9th season, but there remains some fun stuff.

I don't like whole Rachel Likes Joey subplot (many don't), but one thing that stands out is Joey's reason/excuse for kissing Rachel in the season finale in the Bahamas (does someone pay for Phoebe? what about her passport issues?).  He sees Ross kiss Charlie, who was going out with Joey. But, Joey/Charlie broke up, and the kiss was only after Ross was told by Charlie. 

SCOTUS Watch: Day 3 (RIP Roe)

BREAKING: Arkansas Attorney General Leslie Rutledge has just certified that the Supreme Court has overturned Roe. Abortion is now immediately illegal in Arkansas.

Abortion is now illegal in six states -- Arkansas, South Dakota, Kentucky, Louisiana, Missouri and Oklahoma.

— Megan Messerly (@meganmesserly) June 24, 2022

The day started with a curious split upholding a complicated Medicare funding regulations -- Kagan for the liberals + Thomas and Barrett vs. Kavanaugh for the rest of the conservatives. The case is from November and the dissent is under four pages. 

The majority holds that the "regulation is consistent with the text, context, and structure of the DSH provisions" while Kavanaugh says it is not the "best reading." That doesn't sound enough to strike the regulation. Is this some hidden Chevron deference battle and was settled behind doors? 

The Court has multiple administrative law cases (at least one left) and have not bit the bullet, so to speak, yet though perhaps they are doing so silently.  This is a basic fight, especially given our modern day administrative state and its importance in making policy.  But, the issue will be lost in the weeds today, if anything is worthy of comment there anyhow.

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SUPREME COURT ENDS CONSTITUTIONAL RIGHT TO ABORTION

I was not alone in thinking that the abortion ruling would be dropped next week.  Both Planned Parenthood v. Casey and Webster v. Reproductive Services were handed down at the end of the term.  Roe v. Wade was handed down in January.  But, that was something of a special case, including it being re-argued.  It would have came down late as well. 

There were nine [now seven; they announced a Monday opinion day, but doubt that will be enough]  opinions left, and there were various possibilities.  For instance, there is the coach's prayer case that four members were dying to decide and finally it was worth it with Barrett coming on the Court.  That might make some Establishment Clause news, if somewhat more a matter of clean-up than anything else.  

But, the day after they handed down the big gun rights opinion (Thomas), they decided to hand down the Dobbs opinion. And, other than clean-up and response to other opinions (written after the original), the draft reportedly staid basically the same.  So, basically, the worst possible person, full of scorn, gets to write the opinion overturning Roe v. Wade.  

The SCOTUSBlog headline warrants comment.  I do not think the "right" to choose an abortion is gone as a matter of right. The Fifteenth Amendment was not amended out of existence when the Jim Crow society upheld the power to deny black people the right to vote.  A right that did matter.

The "ends" there was a matter of reality in practice.  There is a difference, an important difference, that should not be ignored.  I'm working on a review of Mark Tushnet's Taking Back the Constitution, and it ends with a push for progressives to promote "popular constitutionalism."  

The idea is the meaning of the Constitution should not be left to the courts.  That is wrongful "judicial supremacy."  Suggesting the "right" to choose no longer exists now is of that caliber.  And, in our system, and in theory overall, there is an important principle about following the rule of law, including what courts decide.  EVEN THERE, defining a legal right for various purposes is not the same as the inherent existence of it.  

One place where this is important is when abortion is a matter of criminal law.  Certain progressive prosecutors and attorney generals have declared that they will not enforce such laws.  We do not know what this will mean. What happens when it becomes known some doctor (or layperson) performed an abortion in one of these states?  

But at the same time, abortion rights advocates are eyeing preemption as a possible solution to protecting access to abortion — specifically, medication abortion, which is increasingly being targeted by state legislatures. The argument holds that, because the FDA is the federal agency solely responsible for regulating drugs, states don't have the power to overrule its approval of abortion medication. The FDA approved mifepristone, one of the abortion pills used along with misoprostol, in 2000, and it's now available in all 50 states.

Merrick Garland reaffirmed the right to that drug among other things in a statement strongly dissenting from the opinion. The Attorney General noted the federal law in place to protect clinic access, the right to travel, and counseling are all still in place.  President Biden in his remarks cited travel as well.  Kavanaugh claims that right is still present.  

Yes, Alito wrote the majority for five.  Thomas wrote a short concurrence underlining his desire to do away with substantive due process while sorta lying about that being the only basis cited by the respondents here.  Equal protection, at the very least, is part of the right to choose, and was cited in Planned Parenthood v. Casey (also overruled today).  

Kavanaugh wrote a relatively short (most of the 200+ pages is the majority and dissent) concurrence to say how reasonable he is.  He puts forth the b.s. that the Constitution is neutral on abortion. The Constitution bans servitude, supports equal protection (of persons), and protects liberty.  Forcing persons (mostly girls and women) to be incubators violate each.  

Roberts concurred in result.  He argues the viability line doesn't make sense (without really doing much to answer the extended arguments used in Casey in particular to defend it) and basically says 15 weeks is enough for women to decide.  It is unclear how that works for special cases, when it is a lot less clear that it is enough (such as if a fetal abnormality is found later).  But, anyway, the case was taken for limited purposes, and he wouldn't have gone all the way today.  

There was a joint dissent. This happens a very few times (recall the dissent in the PPACA Cases) and is a symbolic way to express a united front. The opinion cannot merely be by Breyer surely, since it has footnotes.  

It also has various tones. For instance, "Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor."  That's Kagan.  Super Snark.  

Then, there is angry: "It is a history of women seeking illegal abortions in hotel rooms and home kitchens; of women trying to self-induce abortions by douching with bleach, injecting lye, and penetrating themselves with knitting needles, scissors, and coat hangers."  That's Sotomayor.

And, then, there is various things about balancing and precedent and stuff (and maybe even the Appendix -- Breyer likes those) that feels like Breyer. 

One thing my perusal did not  pick up (yet) is talk about how abortion rights really is a matter of religious liberty, including the basic question of "potential life" being religious.  Sotomayor flagged that in the oral argument.  The majority started that way, really, by noting how society splits on the morality of abortion.  Yes, and the state should not compel people to follow one side.   

I have been concerned about abortion rights from the 1980s, when I was a teenager.  The whole thing for me personally is largely theoretical, but my loved ones include people who are directly affected.  So, it really is not merely theoretical, though all my musings here or whatever might make it seem that way.   Anyway, that is who I am -- I have an urge to think things through, make my opinions known, and maybe, maybe, help others a bit while engaging in the development of the matter.

What is next?  Well ...

The 18 states with near-total bans on the books are Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.

and ...

Four other states — Georgia, Iowa, Ohio, and South Carolina — have laws on the books banning abortion after the sixth week of pregnancy, which is before many people who may want an abortion will be aware that they are pregnant.

One or more of those states (we already saw Iowa recently used to be one; we don't know how far it will go now) might have state constitutional provisions that protect abortion.  Michigan, for instance, might be a decent bet there.  It is not clear that all of the twenty-two will hold firm, especially regarding the usual extreme exceptions.   

The majority opinion (surely reliable!) assures us that "only" abortion is involved.  But, what exactly is the reason for that?  Why should "potential life" make abortion different regarding drawing constitutional lines?  

As the dissent and others note, text and history surely would suggest a consistent application would have broad possibilities.  Some assume that we are soon on the road to a national constitutional ban.  Now, that would be something -- Kavanaugh ASSURES US that the Constitution is neutral.  Alito says the matter of abortion is not legislative. 

People note we should not be naive.  But, it is not like any of these people were not open (other than in confirmation hearings, where being open is allegedly unethical) about their position.  The only person somewhat unclear regarding where he might eventually land is Roberts.  I do not think he wants to force New York and California to ban abortion.  

(Mind you, someone like Thomas very well might disagree.  And, we might get some more talk on the matter, one that might very well matter somehow.  If a self-defense argument is eventually made, for instance, it really seems like something that has to be addressed somehow.)

We need not "trust them" though.  Ditto on Kavanaugh's assurance that there is a constitutional right to travel, so states cannot ban people from traveling to have an abortion.  I am not really sure how far that will be taken.  I dealt with this in the past, but the matter simply has not been pressed in all of its complexities.  

The same with the limits of congressional power, including any minimum limit here, even for the abortion drugs cited.  A basic line in the opinion is that "potential life" is special.  So, it would be perfectly logical to allow any sort of drug or device that "destroys" it, even if the evidence of them doing so is unclear and involves merely a fertilized egg.  

I think not going further than what actually happened the last couple days is bad enough. A Court with four (Thomas's ethical problems have been addressed) members that are tainted in the extreme (no wonder public respect is at historical lows) went full YOLO (including rushing along the gun case without an evidentiary hearing) two days back to back on abortion and guns.  

The efforts to defend reproductive liberty and vote for those who do the same are fundamental.  We also just had national gun reform passed today though it is unclear how safe it all is from yesterday's opinion.  But, ultimately we need bigger change, including to deal with a fundamentally screw up Supreme Court.  The people need to "end" some stuff too. 

ETA: This website provides a lot of good data on abortion, including the state of play of the law nation-wide. Now, it will be even more important in certain places to know what the law is and the resources available.  

Dobbs is not final for 25 days, I believe, which matters if it means some more women will have weeks more of access. But, then, there are reports of clinics closing now.  Anyway, a "trigger law" in Texas won't -- as of now -- go into effect in around thirty days. 

SCOTUS: Day 2 (Guns et. al.)

NEW: Per Supreme Court spokeswoman: "Three individuals were arrested by Supreme Court Police, at approximately 9:30 a.m. this morning, in violation of Building Regulation Two: https://t.co/cLUfXSWrEw. The individuals will be transported to the MPD’s Central Cell Block." @fox5dc https://t.co/6MSeBZBstG

— Katie Barlow (@katieleebarlow) June 21, 2022

The morning of the last opinion day, a little remarked [there was not even a separate article in SCOTUSBlog] protest occurred at the Supreme Court. From what I can tell, at least one woman (maybe more) handcuffed herself to the fence (still in place) in front of SCOTUS until the handcuffs were soon cut off.  This was a form of abortion rights protest.  To those who heard about it.  

After the latest school shooting (21 dead), there actually was more than "thoughts and prayers."  A bipartisan bill was crafted in the Senate, the Republican side of the negotiation team including top Republican Senate leader, John Cornyn of Texas. A summary is found here and does not include any bans or twenty-one year old lines.  But, some good stuff.  

As we wait to see if this legislation passes (so far the Senate side seems safe), the Supreme Court handed down the expected 6-3 gun decision out of New York.  Birthday boy, Justice Clarence Thomas, wrote the opinion, joined in full by the conservatives.  Alito concurred to be annoyed at Breyer's dissent.  Kavanaugh (with Roberts) to remind that they still accept various regulations (what ones? remains to be seen, including determining if ones presumptively okay have some other problem).  And, Barrett to briefly note an academic point of some methodology importance.  

The devil is in the details.  This blog is one place where gun details are helpfully provided.  Jake Charles on Twitter flagged how the majority confused things by its methodology, which focuses on "history" and rejected a popular court of appeals two step process (the first to determine if a regulation is basically of 2A concern at all).  The general tenor of the majority seems to put a lot of gun regulations into doubt though some will highlight Roberts/Kavanugh.  But, they concurred in full.  

(One spin is to note the licensing scheme struck down is only in seven states.  But, they are very populous ones.  And, who is to know if the others do not have some poison pill aspect?  Once gun regulations, even in public places -- Heller emphasized the home --  are looked at more suspiciously, there is more of a chance something will be deemed suspicious.) 

My general sentiment is that gun regulation is harder now with more stuff in doubt.  What about the pending national bill?  It would seem okay, but who knows?  Is the "red flag" law regime historically acceptable?  I would be somewhat surprised if the law (knock on wood) does not somehow eventually become a Supreme Court case.  And, if the justices do not find something wrong with the eighty page bill.  

[My current state senator, Sen. Gillibrand, and councilwoman were all very upset; Sen. Biaggi continued her "expand the Court" mantra.] 

Let me add here that I accept there is some sort of constitutional right to own a firearm and some sort of right to carry one outside the home. It's a "liberty" of some sort. New York does not deny this.  Online, a few find this horrible for me to grant, perhaps citing the "militia" language of the 2A.  

This is foolhardy, without going into the confusing about the history.  (One sneered at the idea a black person in 1870 was accepted to have a right to have and carry.  Come the fuck on.)  The general public accepts some sort of basic right to firearms.  The issue is what sort of regulations are acceptable.  You can speak to the choir there all you want, but that is the basic core.  And, making it harder for yourself is not a great idea. 

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Death Penalty: There were other opinions. Kagan wrote the majority and dissenting opinions in two of them.  A mild surprise actually also involves guns.  

The opinion involves the current execution regime where a person who alleges an execution procedure is unconstitutionally cruel and unusual has to cite an available alternative.  Here, the option suggested is the firing squad, even though Georgia would have to pass new legislation for it to be available there.  The method, however, is available in four states. It is not some fantastical alternative.  That is enough.  

Roberts and Kavanaugh went along with the liberals while Barrett led the dissenters (the whole thing took 22 pages, two decisions/headnotes).  To be clear, the person still has an uphill battle, only getting the chance to make the claim.  The Supreme Court's current majority still is clearly not supportive of finding some procedure illegitimate on the merits, never doing so yet.  

Miranda: As expected, Alito v. Kagan (usual split), the Supreme Court made it harder to get relief when a violation of Miranda v. Arizona occurs.  You still can keep a statement obtained via a violation of the typical warnings out of the trial, but often you will not have a trial.  For instance, someone who pleas guilty who waives such challenges.  

[Someone said online this opinion basically made Miranda voluntary and I pushed back.  I was partially wrong in that the general tone (note author) basically sent the message that Miranda isn't worth much.  This can at the very least encourage a weak application. Note also that apparently exclusionary rules aren't necessary to enforce constitutional rights, but that doesn't mean other means of enforcement will be honored.]

Voting Litigation: A partisan split is present in North Carolina, like in various states, and the first opinion (8-1, Gorsuch v. Sotomayor) allows legislative leaders the chance to intervene in the litigation (here involving voting id laws).  

Rick Hasen at first blush on Twitter suggests he thinks the ruling is reasonable (he's the election guy).  And, Kagan and Breyer's involvement suggests that might be right.  Also, in some other case, a Democrat might benefit from this approach. 

"Panel Ties Trump to Fake Elector Plan, Mapping His Attack on Democracy"

The hearing ending with testimony from Ms. Moss, an election worker who processed votes with her mother, Ruby Freeman, in Atlanta on Election Day. In early December, Mr. Giuliani appeared a state legislative hearing in Georgia and falsely accused her and her mother of taking ballots from a suitcase and illegally running them through voting machines.

Mr. Giuliani’s baseless allegations were amplified by right-wing media outlets and by Mr. Trump, who mentioned Ms. Moss’s name several times during his call with Mr. Raffensperger. After the accusations went viral, Ms. Moss was subjected to racist threats by phone and text and became afraid to leave the house.

The public hearings of the January 6th House Committee have had some powerful aspects. Those already inclined to be into them (such as MSNBC people) are fascinated.  I'm unsure how the average person is reacting though many (and not just black people) were really pissed off watching Wandrea Moss, a (black woman) Georgia election worker, testifying. 

There is power to live hearings and they have been well organized, helped by not having partisan Republicans [such as those in a hearing today on workplace behavior at the NFL using their time to repeatedly complain about Biden not being overseen instead] making a pest of themselves.  It is somewhat unfortunate, since you want hearings not to just be one-sided, but it is so much easier.  Also, it is carefully set up so we don't have each member asking questions and basically grandstanding.

This is why it was so important to have witnesses during the two impeachment trials, even if the chief manager handwaved the lack of them the second time around. We saw personable, civic minded types in the House hearings during the first impeachment. The second impeachment does show what a well put on presentation could entail: it had an excellent video presentation, putting together an extended narrative. 

And, now we are seeing some here, until now basically white Republican guys who if Trump ran again would (more than one said so) vote for the guy again.  A powerful one yesterday was an Arizona legislative leader (Rusty Bowers, an older white Mormon) who first totally denied Trump's claim that he told Trump the election was fraudulent.  And, then he passionately, mixing in both faith and republican duty, explained how he rejected Trump's attempt to get him involved with further the Big Lie. 

An earlier hearing had former conservative federal judge / short lister to the Supreme Court, John Michael Luttig.  He was so deliberate early on that people thought he had a stroke ("stop making fun of a stroke victim!"). Since it was a video presentation, that couldn't just be handwaved, but what he said mattered.  He ended with a warning:

Trump and his allies and supporters are a clear and present danger to American democracy. They would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020. I don't speak those words lightly. I would have never spoken those words ever in my life, except that that's what the former president and his allies are telling us.

The whole thing -- with so much coming out, there is apparently going to be more hearings than at first expected; reports of editing questions on the fly in the middle of things -- is rather impressive.  As the the poll worker, well, I have and will be a poll worker again.  So, that is somewhat personal. Others might sign up because of her public service.  I was one before it was cool.  

Again, we will see what this all will go, there not being some magic complete justice realistically in the cards.  A basic thing about these hearings is that people still are able to be upset, still have the wherewithal to have faith in the system, and wanting to see people defend it.  That matters.

We will see how strong that sentiment is.  We found out that Sen. Ron Johnson, already a serious tool, was involved in trying to hand fake electoral certificates to presiding officer Mike Pence.  Johnson is up for re-election this year.  Will Wisconsin voters re-elect him? People don't want to call Pence a "hero" and his heroism is clearly very limited.  Voters can do their part in November.  

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We will get back to our previously scheduled SCOTUS programming soon, especially since they added a Friday Opinion Day.